RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXX  	CASE:  PD-2018-00163-2
BRANCH OF SERVICE:  Army 	TDRL REMOVAL DATE:  20030523

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects this covered individual (CI) was an active duty E4, Military Policeman, medically separated from the Temporary Disability Retired List (TDRL) for “bipolar disorder” with a disability rating of 10%.  The case was previously evaluated by the PDBR and the panel recommended no modification or re-characterization of the Physical Evaluation Board (PEB) adjudication.  The CI disagreed with the determination and appealed to the United States District Court of the appropriate jurisdiction.  The Court granted the parties’ joint motion for remand and stay of proceedings.  The case was remanded to the Army Review Boards Agency, which referred the case back to the PDBR for reconsideration of the disability rating.  The complete case file, to include additional documentation provided by counsel representing the CI, was evaluated by a new PDBR panel comprised of different members.  These proceedings reflect a de novo review and analysis confined to the unfitting PEB condition.  

ANALYSIS SUMMARY:  

Bipolar Disorder.  According to the service treatment record (STR) and MEB narrative summary (NARSUM), the CI complained of serious mood swings in April 1997.  He was diagnosed with bipolar II disorder and hospitalized in August 1997 and July 1999 for mood symptoms and suicidal ideation.  There was no history of psychiatric hospitalizations beyond July 1999.  The CI was separated and placed on the TDRL on 11 November 1999.  

During the first TDRL evaluation in February 2001, the CI denied any suicide attempts, self-harm behavior, or psychiatric hospitalizations since being medically boarded.  He said his marriage was going well, and denied any domestic violence.  He slept 5-6 hours a night and stated that work was “emotionally exhausting.”  He described his current mood as “mediocre" with continued daily mood swings and occasional suicidal ideation, but no intent or plan.  He reported no current self-injurious behavior, but did mention two arm-cutting incidents in 1998 and 1999.  

At the 4 December 2002 TDRL re-evaluation examination, 6 months before separation, the CI reported that he had started mental health (MH) treatment in July 2002 and also had an evaluation from a VA psychiatrist in September 2001 (no treatment notes for these visits were in evidence).  Although the CI stated that the clinicians at both treatment locations felt he did not need medications any longer, the TDRL examiner contacted the CI’s current MH provider and noted he was intermittently prescribed psychotropic medications in 2002.  During the examination, the CI also denied any manic, hypomanic, or depressive symptoms since his last TDRL evaluation.  The examiner contacted the CI's current supervisor and corroborated that he had been doing well at work, noting that the supervisor described him as "a go-getter" and good employee overall.  However, she also noted that sometimes he had a tendency “to go beyond his job description, at times inappropriately.”  She also indicated that during the “rare instances” he was confronted about these actions, he had a difficult time dealing with the feedback. There was no VA examination proximate to permanent separation in evidence.
The panel directed attention to its rating recommendation based on the above evidence.  The PEB rated the bipolar disorder 10%, coded 9432 (bipolar disorder), citing mild to moderate industrial impairment.  The VA rated the bipolar disorder 30%, also coded 9432, based on the October 1999 C&P examination (~3.5 years before permanent separation).  The panel first acknowledged the VA’s 30% rating, which was consistent with the Army’s rating at TDRL placement. Per DoD guidance, the panel assesses probative value of any comprehensive examination within 12 months after separation, and there were two TDRL examinations used as probative evidence to consider for the permanent separation rating. 

The December 2002 TDRL examination noted the CI was “not experiencing any psychiatric problems by his report” and that psychological testing “indicated no significant pathology.” Although the examiner noted the test results suggested he “underreported his symptomology,” the panel’s charge is to focus on the evidence demonstrating occupational and social impairment caused by his bipolar disorder.  Panel members noted that despite the absence of consistent MH treatment and psychotropic medication, the CI’s condition had improved and his symptoms were in remission during the TDRL evaluation.  There was no STR evidence demonstrating consistent MH treatment after separation. There were no treatment notes for emergency room, inpatient or outpatient visits for MH issues, or use of psychotropic medication that would demonstrate his condition worsened after separation.  There was evidence showing the CI was employed and able to maintain employment during the TDRL period and post-separation.  As noted above, during the 2002 TDRL examination, he was performing well overall. 

Although the STR noted the CI’s relational issues with his wife, he stated he had made good progress in his marriage and there was no evidence or report of domestic violence.  The panel acknowledged the report of marital problems in his contention (counsel), as well as the divorce in 2003, however, evidence of any social or interpersonal problems attributable to the bipolar condition was not documented in the available records.

Panel members agreed that at the time of permanent separation, the CI’s condition had apparently improved with no evidence that his bipolar disorder had interfered with his ability to perform his work assignments; nor was there evidence to demonstrate significant social impairment.  Although the supervisor reportedly stated the CI acted “inappropriately” at times, to make an association between this behavior and the MH condition would be speculative at best.  The TDRL examiner acknowledged that with the cyclical nature of bipolar disorder, symptoms could recur in the future, but there was no objective evidence that the CI’s condition did not remain in remission proximate to separation.  

The panel considered the record in totality and concluded the evidence demonstrated the CI’s condition was consistent with a 10% level of disability for “occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress; or; symptoms controlled by continuous medication.”  After due deliberation, considering all the evidence and mindful of VASRD §4.3 (reasonable doubt), the panel concluded there was insufficient cause to recommend a change in the PEB adjudication for the bipolar disorder.  

Panel members reviewed the 26 pages of additional material (Exhibit F) received on 14 April 2022, but after due consideration, the recommendation remains unchanged at 10% as stated above.  

The CI’s legal counsel contends long-term worsening of his MH condition.  The panel’s scope of review is defined in DoDI 6040.44, and the panel’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections when appropriate.  The panel gives consideration to VA evidence, particularly within 12 months of TDRL separation, but only to the extent that it reasonably reflects the severity of disability at the time of separation.  Any other requests or contentions are outside the purview of the PDBR.  

In the matter of the bipolar disorder and IAW VASRD §4.130, the panel recommends no change in the PEB adjudication.  There are no other conditions within the panel’s scope of review for consideration.  Therefore, the panel recommends no modification or re-characterization of the CI’s disability and separation determination.   

Dear XXXXXXX:

	On remand from the U.S. District Court for the District of Columbia, the Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and found your separation disability rating and your separation from the Army for disability with severance pay to be accurate.  I have reviewed the Board’s recommendation and record of proceedings (copy enclosed), and I accept its recommendation.  I regret to inform you that your application to the DoD PDBR is denied.  

	This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted.

	A copy of this decision has been provided to the counsel you listed on your application.